57356 Federal Register / Vol. 71, No. 188 / Thursday, September 28, 2006 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Chapter 1 

[Docket FAR–2006–0023, Sequence 5] 

Federal Acquisition Regulation; 

Federal Acquisition Circular 2005–13; 

Introduction 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Summary presentation of final 

and interim rules, and technical 

amendments and corrections. 

SUMMARY: This document summarizes 

the Federal Acquisition Regulation 

(FAR) rules agreed to by the Civilian 

Agency Acquisition Council and the 

Defense Acquisition Regulations 

Council in this Federal Acquisition 

Circular (FAC) 2005-13. A companion 

document, the Small Entity Compliance 

Guide (SECG), follows this FAC. The 

FAC, including the SECG, is available 

via the Internet at http:// 

www.regulations.gov. 

DATES: For effective dates and comment 

dates, see separate documents which 

follow. 

FOR FURTHER INFORMATION CONTACT: The 

analyst whose name appears in the table 

below in relation to each FAR case or 

subject area. Please cite FAC 2005-13 

and specific FAR case number(s). For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501-4755. 

LIST OF RULES IN FAC 2005–13 

Item Subject FAR case Analyst 

*I ........... Implement OMB Policy on the Use of Brand Name Specifications (Interim) ..................................... 2005–037 Davis. 

*II .......... Information Technology Security ......................................................................................................... 2004–018 Davis. 

III .......... Online Representations and Certifications Application (ORCA) Archiving Capability (Interim) ......... 2005–025 Woodson. 

*IV ........ Inflation Adjustment of Acquisition-Related Thresholds ...................................................................... 2004–033 Jackson. 

V ........... Trade Agreements–Thresholds ........................................................................................................... 2005–030 Parnell. 

VI .......... Reporting of Purchases from Overseas Sources (Interim) ................................................................. 2005–034 Olson. 

*VII ....... Exception to the Buy American Act for Commercial Information Technology .................................... 2005–022 Olson. 

VIII ........ Technical Amendments .......................................................................................................................

SUPPLEMENTARY INFORMATION: 

Summaries for each FAR rule follow. 

For the actual revisions and/or 

amendments to these FAR cases, refer to 

the specific item number and subject set 

forth in the documents following these 

item summaries. 

FAC 2005–13 amends the FAR as 

specified below: 

Item I—Implement OMB Policy on the 

Use of Brand Name Specifications 

(Interim) (FAR Case 2005-037) 

This interim rule amends the Federal 

Acquisition Regulation (FAR) to 

implement the memoranda issued by 

the Office of Management and Budget 

dated April 11, 2005 and April 17, 2006, 

requiring agencies to publish on the 

Governmentwide point of entry (GPE) or 

e-Buy the documentation required by 

the FAR to support the use of a brand 

name specification. The rule is intended 

to limit the use of brand name 

specifications and provide for maximum 

competition. 

Item II—Information Technology 

Security (FAR Case 2004-018) 

This final rule amends the interim 

rule published September 30, 2005, as 

corrected on November 14, 2005, to a 

final rule without change. The interim 

rule amended FAR Parts 1, 2, 7, 11, and 

39 to implement the Information 

Technology (IT) Security provisions of 

the Federal Information Security 

Management Act of 2002 (FISMA), 

(Title III of Public Law 107-347, the EGovernment Act of 2002 (E-Gov Act)). 

The rule focuses on the importance of 

system and data security by contracting 

officials and other members of the 

acquisition team. The intent of adding 

specific guidance in the FAR is to 

provide clear, consistent guidance to 

acquisition officials and program 

managers; and to encourage and 

strengthen communication with IT 

security officials, chief information 

officers, and other affected parties. 

Item III—Online Representations and 

Certifications Application (ORCA) 

Archiving Capability (Interim)(FAR 

Case 2005-025) 

This interim rule amends FAR Parts 4, 

12, 14, and 15 to address the record 

retention policy where the Online 

Representations and Certifications 

Application (ORCA) is used to submit 

an offeror’s representations and 

certifications. Under FAR Subpart 4.12, 

prospective contractors are required to 

submit Annual Representations and 

Certifications via the ORCA. Data in 

ORCA is archived and electronically 

retrievable. Therefore, when a 

prospective contractor has completed 

representations and certifications 

electronically via ORCA, the contracting 

officer may reference the date of ORCA 

verification in the associated 

Government contract file rather than 

including a paper copy of the 

electronically-submitted representations 

and certifications in the file. Such a 

reference satisfies contract file 

documentation requirements of 

4.803(a)(11). However, if an offeror 

identifies changes to ORCA data 

pursuant to the FAR provisions at 

52.204-8(c) or 52.212-3(k), the 

contracting officer must include a copy 

of the changes in the contract file. 

Item IV—Inflation Adjustment of 

Acquisition-Related Thresholds (FAR 

Case 2004-033) 

This final rule adjusts acquisitionrelated thresholds in the FAR for 

inflation. It implements Section 807 of 

the Ronald W. Reagan National Defense 

Authorization Act for Fiscal Year 2005 

(Pub. L. 108-375). Section 807 provides 

for adjustment every 5 years of 

acquisition-related thresholds, except 

for Davis-Bacon Act, Service Contract 

Act, and trade agreements thresholds. 

This rule also escalates some 

nonstatutory acquisition-related 

thresholds. Often any impact of these 

threshold increases will be beneficial, 

by preventing burdensome requirements 

from applying to more and more small 

dollar value acquisitions, which are the 

acquisitions in which small businesses 

are most likely to participate. One 

threshold change in this rule which may 

temporarily impact small business is the 

increase of the micro-purchase 

threshold (FAR 2.101) from $2,500 to 


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Federal Register / Vol. 71, No. 188 / Thursday, September 28, 2006 / Rules and Regulations 57357 

$3,000, because the simplified 

acquisition threshold will not be raised 

at this time. Other frequently used 

thresholds that are adjusted include—

• The FPDS reporting threshold (FAR 

4.602(c)) will be raised from $2,500 to 

$3,000. 

• Commercial Items test program 

ceiling (FAR 13.500) will be raised from 

$5,000,000 to $5,500,000. 

• The cost and pricing data threshold 

(FAR 15.403-4) will be raised from 

$550,000 to $650,000. 

The prime contractor subcontracting 

plan (FAR 19.702) floor will be raised 

from $500,000 to $550,000, but for 

construction ($1,000,000) is unchanged. 

Item V—Trade Agreements–Thresholds 

(FAR Case 2005-030) 

This final rule converts the interim 

rule published at 71 FR 864, January 5, 

2006, to a final rule without change. 

This rule changes the thresholds for 

application of the World Trade 

Organization Government Procurement 

Agreement and the other Free Trade 

Agreements with Canada, Mexico, 

Chile, Singapore, and Australia. These 

threshold increases occur every two 

years in order to keep pace with 

inflation. 

Item VI—Reporting of Purchases from 

Overseas Sources (Interim) (FAR Case 

2005-034) 

This interim rule amends FAR Part 25 

and adds a provision in FAR 52.225 to 

implement Section 837 of Division A of 

the Transportation, Treasury, Housing 

and Urban Development, the Judiciary, 

the District of Columbia, and 

Independent Agencies Appropriations 

Act, 2006 (Pub. L. 109-115). Section 837 

requires the head of each Federal agency 

to submit a report to Congress relating 

to acquisitions of articles, materials, or 

supplies that are manufactured outside 

the United States. The new provision 

requests from offerors necessary data 

regarding place of manufacture. The 

new provisions will require an offeror to 

indicate whether the place of 

manufacture of the end products it 

expects to provide in response to the 

solicitation is predominantly inside or 

outside the United States. Whenever the 

place of manufacture for a contract is 

coded outside the United States, the 

contracting officer will be required to 

enter into Federal Procurement Data 

System (FPDS) the reason for buying 

items manufactured outside the United 

States. 

Item VII—Exception to the Buy 

American Act for Commercial 

Information Technology (FAR Case 

2005-022) 

This final rule converts the interim 

rule published at 71 FR 223, January 3, 

2006, to a final rule without change. 

This final rule amends FAR 25.103 and 

Subpart 25.11 to implement Section 

535(a) of Division F of the Consolidated 

Appropriations Act, 2004, and similar 

sections in subsequent appropriations 

acts. Section 535(a) authorizes an 

exception to the Buy American Act for 

acquisitions of information technology 

that are commercial items. The final 

rule applies to all offerors responding to 

solicitations for commercial information 

technology where the Buy American Act 

previously applied (generally, 

acquisitions between the micropurchase threshold and $193,000). The 

effect of this exemption is that the 

following clauses are no longer 

applicable in acquisition of commercial 

information technology: 

• FAR 52.225-1, Buy American Act–

Supplies, 

• FAR 52.225-2, Buy American Act 

Certificate, 

• FAR 52.225-3, Buy American Act–

Free Trade Agreements–Israeli Trade 

Act, 

• FAR 52.225-4, Buy American Act–

Free Trade Agreements–Israeli Trade 

Act Certificate. 

This is because the Buy American Act 

no longer applies. The Free Trade 

Agreement non-discriminatory 

provisions are no longer necessary since 

all products now are treated without the 

restrictions of the Buy American Act. 

The Trade Agreements provision and 

clause at FAR 52.225–5 and FAR 

52.225–6 are still necessary when the 

Trade Agreements Act applies 

(acquisitions above $193,000). The 

Trade Agreements provision and clause 

already waive applicability of the Buy 

American Act for eligible products and 

are needed to implement the restrictions 

on procurement of noneligible end 

products. Section 535 and subsequent 

similar sections waived only the Buy 

American Act, not all restrictions on the 

purchase of foreign information 

technology. 

Item VIII—Technical Amendments 

Editorial changes are made at FAR 1, 

3, 4, 5, 7, 13, 26, 33, 49, 50, 52, and 53 

in order to update references. 

Dated: September 19, 2006. 

Ralph De Stefano, 

Director, Contract Policy Division. 

Federal Acquisition Circular 

Federal Acquisition Circular (FAC) 

2005-13 is issued under the authority of 

the Secretary of Defense, the 

Administrator of General Services, and 

the Administrator for the National 

Aeronautics and Space Administration. 

Unless otherwise specified, all 

Federal Acquisition Regulation (FAR) 

and other directive material contained 

in FAC 2005-13 is effective September 

28, 2006. 

Dated: September 19, 2006. 

Roger D. Waldron, 

Acting Senior Procurement Executive, 

General Services Administration. 

Dated: September 8, 2006. 

Shay D. Assad, 

Director, Defense Procurement and 

Acquisition Policy. 

Dated: September 12, 2006. 

Thomas Luedtke, 

Assistant Administrator for Procurement, 

National Aeronautics and Space 

Administration. 

[FR Doc. 06–8199 Filed 9–27–06; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 5, 6, 8, 11, and 13 

[FAC 2005–13; FAR Case 2005–037; Item 

I; Docket 2006–0020, Sequence 10] 

RIN 9000–AK55 

Federal Acquisition Regulation; FAR 

Case 2005–037, Implement OMB Policy 

on the Use of Brand Name 

Specifications 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed to amend the 

Federal Acquisition Regulation (FAR) to 

require agencies to publish on the 

Governmentwide point of entry (GPE) or 

e-Buy the documentation required by 


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